Legal experts think courts are likely to strike down Wisconsin’s lame-duck power grab

Republicans in Wisconsin, Michigan and North Carolina suffered stinging losses in November, but the parties aren’t transferring power quietly, or at all in some cases. On the way out the door, “lame-duck” state legislatures are bringing in last-minute laws that will strip power from incoming Democrats, gut voter-approved ballot initiatives, or otherwise undermine the election results.

But some legal experts say the most alarming legislation the Republicans have passed is unconstitutional and unlikely to survive outraged legal challenges by Democrats. Among other issues, they contend many of the Republican laws blur the constitutionally mandated separation of powers among the executive, legislative and judicial branches of government.

“One of the fundamental principles of the American constitutional system is that the legislature is not the whole government,” said Richard Primus, a professor of law at the University of Michigan. “The point of the constitutional system is that no decision-making system gets to act for the whole political community – the powers are separated.”

Still, Michigan Republicans are pushing through a bill that would strip authority over campaign finance from the Democratic secretary of state-elect. The state previously hit the bill’s Republican author with multiple campaign finance violations. The Michigan and Wisconsin legislatures are also granting themselves power to intervene in lawsuits over their unpopular laws, weakening incoming Democratic attorneys general. And last week the Wisconsin legislature passed laws that take power from the incoming Democratic governor, Tony Evers.

In response, Michigan Democrats are pointing to the state’s separation-of-powers clause, which reads in part: “No person exercising powers of one branch shall exercise powers properly belonging to another branch, except as expressly provided in this constitution.”

Primus, who is part of the left-leaning American Constitution Society, noted that the Michigan legislature wants authority to litigate, “but that’s not a legislative function – that’s enforcement of the law”.

In short, some experts see the moves as a dramatic overreach by one branch of government to grab powers in the domain of others: one probably doomed to fail when it is legally challenged.

In Wisconsin, the Madison-based attorney Lester Pines said the state’s constitution clearly spells out each branch’s duties, and the legislature “does not have the power to supervise the governor and attorney general in the manner in which they’re trying to do it”.

“They’re [power] grabs because the legislature should have known better than to become the supervisors of the governor and attorney general,” Pines said. “The legislators are not supervisors. They do not have executive authority.”

This has happened before. The Michigan and Wisconsin cases have a precedent in North Carolina, where the state supreme court ruled that most of the Republican lame-duck power grabs in 2016 were unconstitutional, pointing to that state’s separation-of-powers clause.

Billy Corriher, a senior researcher at the Institute for Southern Studies, a North Carolina-based progressive research and media group, noted that the clause was written into the state’s 1776 constitution.

Beyond the power grabs, Michigan Republicans are also in constitutionally questionable territory in their attempt to gut or dilute five popular citizen-led ballot initiatives or laws.

A Michigan attorney, Mark Brewer, is representing two citizen-led groups that each collected nearly 400,000 signatures to put on the November ballot proposals to raise the state’s minimum wage and mandate paid sick time. The GOP made the proposals law, then gutted them before the Democratic governor-elect, Gretchen Whitmer, takes office in January.

Brewer said there were “very strong arguments that the Republican changes are unconstitutional” because the state constitution prohibits changes to citizen-initiated laws in the same legislative session. The GOP contends its changes do not affect “the spirit of the law”, but Brewer said that’s “plainly false.”

Voters approved three other initiatives – marijuana decriminalization, voting access expansion and the establishment of an independent redistricting commission to address gerrymandering – by wide margins in November. Brewer notes that proposed alterations could end up “in court through various routes” and there was a strong case to be made that they are unconstitutional.

Courts have also overturned Wisconsin and North Carolina’s attempts at voter suppression that many experts believe are aimed at discouraging minorities from voting. Still, in North Carolina, the legislature is currently rushing to enact a law that voters approved that would require official photo identification at the polling place. It’s similar to a law that federal courts twice shot down, but with a minor tweak – college identification cards and a new identification card that counties will issue can be used to vote.

Similarly, a 2011 lawsuit filed by the liberal issue advocacy group One Wisconsin Now resulted in a federal judge striking down Wisconsin Republicans’ attempts to suppress the vote by severely limiting early voting, among other measures. The lawsuit remains ongoing, but Republicans are again attempting to cut down on early voting. The new set of restrictions could represent a contempt of court, or be grounds for a new lawsuit, said Mike Browne, One Wisconsin’s deputy director.

Democrats’ chances in the state supreme courts are usually much better when they have a favorable partisan makeup. In North Carolina, liberals hold a 4-3 advantage, but in Michigan and Wisconsin conservatives hold 4-3 majorities. However, conservative judges have ruled against the party’s wishes in Michigan, and in Wisconsin Pines said Republicans were “sorely mistaken” if they believe “the supreme court is in its back pocket”.

“The court will be very cautious on separation of powers issues,” he added.

Regardless of the likely failure of their moves, some see the Republican tactics as having other political consequences.

Dan Weiner, senior counsel for the Brennan Center for Justice in New York, said the North Carolina party’s moves in 2016 “in some sense energized the opposition”, which he said was partly why Republicans in 2018 lost supermajorities in both chambers despite the way the state had been gerrymandered.

“On the level of pure politics, I sometimes scratch my head over what they’re doing,” Weiner said. “In some ways, it’s very shortsighted.”